Chataika v Bugayo (Civil Appeal 8 of 2014) [2017] MWHC 88 (8 June 2017)

Luka Chataika v. Fred Bugayo Kenyatta Nyirenda, J . ·- '.":>1 .. ·• I HJG1� ' .... , I.... i 13 ff A ::;:,.- ,.. j ·-·�·,··1 r .·' -1 ., ' JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL APPEAL NO. 8 OF 2014 (Being Civil Cause No. 160 of 2011 in the First Grade Magistrate's at Chikwawa) Sitting Court LUKA CHATAIKA .................................................. ...................... APPELLANT BETWEEN -AND- FRED BUGA YO ...... ............ .....•......................... RESPONDENT ........ CORAM: THE HONOURABLE JUSTICE of counsel, for Mr. Domasi, present Respondent, Mr. 0. Chitatu, and 1Anrepresented the Appellant Court Clerk KENYATTA NYIRENDA JUDGEMENT Nyirenda, J. against court) Kenyatta This is an appeal of the First Grade Magistra in its judgment at Chikwawa lower court ruled in favour of the Respondent parties the decision contained herein. (lower in a land dispute dated 19th January te's Court sitting 2015. The the involving is dissatisfied The Appellant has put forward the following "i. That lower court failed with the whole judgement five grounds of appeal: of the lower court and he to apply principles of the Sena Customary law applicable in the area. ii. There was no evidence that the defendant was the owner of the piece land in dispute . Luka Chataika v. Fred Bugayo Kenyatta Nyirenda, J. iii. The lower court misdirected itself on given by the Appellant and her each other. found that they contradicted the evidence nephew and wrongly iv. The decision is against the weight of the evidence. v. The claim was statute barred " The Appellant seeks reversal of the decision of the lower court. It is trite that when hearing an appeal from a subordinate of the Courts was before Act, this Court proceeds the court below, the law applied and the reasoning behind the decision. that by way of re-hearing of all the evidence court under section 20(1) The evidence adduced before the lower court can be easily stated. The Respondent (the Plaintiff the Respondent himself (PWl), Kelita in the lower court) called three witnesses, (PW2) and Eveles Henry (PW3). namely, Betchi left by his father. He found the Appellant in dispute). PWl told the lower court that the Appellant is not related to him. PWl 's father died in 2003. In 2004, PW 1 went to Selemani Village to start cultivating the gardens (garden had bought the garden in Oliver is not related to PWl. In 2005, the garden in dispute was cultivated Appellant's children. the Appellant said that he from Oliver who thereafter left for Mozambique. When he confronted the Appellant, one of the gardens cultivating dispute by the PWl laid a complaint before Village before Village Headman Selemani dispute. Since Village Headman Selemani dispu_te due to a leg problem, and she confirmed the encroachment he instructed that the Appellant was not able to inspect his wife to inspect had bought the garden in the garden in the garden in dispute Headman Selemani. There was no evidence by the Appellant. the matter to the police but the Appellant refused to appear PWl later referred before them so the police it GVH Chikuse. Chikuse and Oliver PWl. GVH Chikuse ruled in favour of PWl but the Appellant Paramount Lundu who also ruled in PWl 's favour. referred the matter to T / A Makhwira and the Respondent confirmed to have sold the garden in dispute who in tum referred before GVH at K25, 000. 00 to The Appellant, appeared appealed to Oliver In cross examination, PWl said that he was given 3 gardens of his late father. Luka Chataika v. Fred Bugayo Kenyatta Nyirenda, J. to claim the gardens to the Respondent that she was not related father. She said that when PW2 testified many years ago. She said that all she knew is that the garden in dispute the Respondent's Vi•llage her husband knew the boundaries. cultivated of the traditional by unknown person, leaders. She did as directed her was that she She said that what surprised to show the Respondent why the Respondent of his late father, the garden. that's but she came to know him to belonged she because found it already sought the intervention the Respondent she is the one who was delegated by went to Selamani of PW3 was that the Respondent The testimony the father of the Respondent for many years. dispute, inherited Respondent Appellant did not cross examine had cultivated is the son of her uncle. She said the garden in the gardens, By then, she was young. When her uncle died, the The She had never seen Oliver at the gardens. including the gardens. PW3. The Respondent Wyson Chidothi called (DW2) and Mailosi namely, Thonje (DW3). three witnesses, the Respondent himself (DWl), In 2000, DWl DWl was the Appellant himself. DWl stated 's father bought Respondent. sum of K36, 000. 00. In 2004, the Respondent him but he told him that the garden in dispute bought it. He called dispute Respondent does not belong to the Respondent. refused to meet him. Mr. Thonje, the garden in dispute that he is not related to the the the garden in dispute to him because from his father from Oliver·at claimed belonged Donald and Paundi who all said that the garden in He also called Oliver but the Thereafter, the matter the Respondent. tendered a letter He appealed Lundu. (EXD 1) from Paramount to Paramount was referred before T. A. Makhwira who ruled in favour of Lundu who ruled in his favour. DWl DWl said that the matter was not resolved by Paramount In cross examination, Chief Lundu. He conceded Lundu saying 21st December the letter produced was not concluded. matter versions. 2010 stated different by the Respondent that there were two letters While the letter that the garden in dispute adduced belonged dated 11th May O 11 is to the effect that the to the Respondent, Chief from Paramount dated by the Respondent DW2 testified 1986. DW2 actually that the Respondent's the Village accompanied father was given the garden in dispute in Headman during the distribution of Luka Chataika v. Fred Bugayo Kenyatta Nyirenda, J. father. to the Respondent's the land that resulted in the garden in dispute, among other gardens, being The garden in dispute shared boundaries allocated father and Mr. Materekera that of Nfr. Materekera. Respondent inherited the garden of his late father before he claimed that of the late Materekera. garden in dispute In cross examination, to Mr. Materekera. DW2 denied knowing that Oliver had sold the After the Respondent's died, the with DW3 stated respective that the Appellant and the Respondent inherit ed the gardens of their parents. He added by saying the garden belongs to the Appellant. Having heard the evidence and made its determination from both parties, as follows: the lower court analysed the evidence "Such was the totality of evidence. Now, I pause to evaluate it. not in dispute It was supported when the complainant As alluded that the complainant inherited the garden of his late father. by PW2 who was the wife of the village head who gave his father He was the land and claimed it, she _showed him because by then her husband was sick. to this piece of evidence was not in dispute. the complainant However, that the other part was cultivated realised that Mr. Oliver added that had sold it. when he went to the garden with PW2 they found by unknown person. When he caused inquiries, he conceded The defendant I the other witnesses father. before this court simply for the defendant said the defendant it at K36, 000. 00, while inherited the land of his that his father bought My view is that the defendant Oliver The defendant never called is correct to say that his father bought the land from Oliver. as his witness. I do not know if he is alive or not. I have said more than once before land is not for sale. Traditional going on. this court and I will not stop saying that customary are aware about this but the practice is still leaders There is no doubt the sale was illegal. which was done between sales. We are not here to enforce illegal Oliver and the father of the defendant Therefore standard " to the complainant. having care/ ully looked at the totality of evidence of proof in Civil Cause, I find that the land belongs and considering to the complainant. the Costs Luka Chataika v. Fred Bugayo Kenyatta J. Nyirenda, Time to tum to the applicable lower court (the Court is fully aware that there is now in place a new legal regime governing land matters). Sections 25 and 26 of the Land Act are relevant law as it stood at the time the matter was before the . Section 25 of the Land Act provides Malawi. The section purposes of the Land Act. Sect that all customary land is property of the people of further vests customary land in perpetuity in the President for ion 26 of the Land A ct reads: "The Minister administer and control customary land Malawi: shall subject to this Act and to any other law for the time being in force all customary land and all minerals for the use or common benefit direct or indirect in, under or upon any of the inhabitants of Provided that a chief may subject to the general or special of any customary land within his area in of the direction Minister accordance authorize the law. " with customary use and occupation land" and "customary land means all land which is held, occupied law" are defined in section 2 or used under of the The terms "customary Land Act. Customary customary customary definitions, authorize law but does not include public law applicable in the area concerned. one may safely conclude Based on a reading have been given the mandate law is defined as of the two to land. Customary that chiefs the use of customary land within areas. their respective to bear in mind that there is nothing it is important land. Customar1 land is for communal of customary However, customary must use and occupy the said land for their benefit but as directed legal ownership Strict aptly put by Mzikamanda District Jere, HC/Mzuzu J, as he then was, in VH Zakeyo Chunga v. Nowell Registry of use and inhabitants of Malawi by their chiefs. alien under our laws. As was land is therefore like ownership Civil Cause No 176 of 2000 (unreported): "In short the law does not provide The present therefore customary find it strange land. " law envisages communal for individual ownership title or ownership of customary to claim title or ownership of customary land. land. The law would of a parcel of for any individuals Further, required then, in Milton in administering to be guided by the Constitution. the use and occupation of customary In the words of Mzikamanda J, as he MLR 246: Banda [2007] are land chiefs V/H Chikutu N. Msofi v. "A chief who administers bound by the Republican of Malawi ........ and controls Constitution customary which provides . land according to customary law is to all people for equal protection Luka Chataika v. Fred Bugayo Kenyatta J. Nyirenda, Although use and occupation, provisions. " a chief has power to allocate and reallocate any piece of customary such powers must be exercised while respecting land for the constitutional Having cr the grounds of appeal. itically considered the facts an d the applicable law, it is time to tum to That lower court failed to apply principles the area of the Sena customary law applicable in This ground was not pursued: Counsel respect of this ground. As a matter this ground of appeal. address Domasi did not advance any arguments in did not of fact, even the skeleton arguments There was no evidence dispute that the Respondent was the owner of the piece land in This ground lacks merit. The lower court made a clear finding that it was not in dispute that the Respondent The finding was premised DW2. inherited the garden in dispute on the evidence from his late father. PW2, PW3 and of the Respondent, itself on the evidence The lower court misdirected each other nephew and wrongly found that they contradicted given by the Appellant and her A perusal of the Court record shows that whilst father bought the garden in 2000 from Oliver at K36, 000. 00, the respective testimonies stated there is big contradiction between the evidence witnesses. they from his father. Clearly, of his nephew and the other defence witness tpat the Appellant inherited of the Appellant and that of his the garden in dispute were otherwise: the Appellant that his testified The decision is against the weight of the evidence Counsel Domasi submitted was against submissions by the Appellant: the weight of evidence. that the lower court erred in reaching a decision that It might not be out of place to quote in full the "ASSESSMENT Luka Chataika v. Fred Bugayo Kenyatta J. Nyirenda, On page 3-4 of the lower Court Judgm ent, the magistrate wrote: 'My view is that the defendant 000 while the other witnesses inherited the land of his father. is correct to say that his father bought it at MK36, for the defendant simply said the defendant I have said more than once before customary still going defendant father of the was illegal. land is not for sale. Traditional leaders on. There is no doubt the sale which was done between Oliver this Court and I will not stop saying that is are aware but the practice We are not here to enforce illegal sales. and the to the magistrate, to sell land The truth is that no-one With due respect illegal land because to transfer can pass legal title to the president. person'. 'the right of using the land to another this conclusion was too sweeping. that land legally belongs However, a land user has a right It is not necessarily on customary to another Further, the parties parents. land.from their acquired the court unnecessarily dwelt on the question the land. The evidence clearly of buying shows that instead the parties ascertaining acquired how the CONCLUSION In conclusion we state that: (a)Customary person land (use, possession, ways including control sale. in several etc) is transferable to any other (b) The said ·ale is possible because land even achieved though it is inherently owner. by the private there is 'private communal. ownership' in customary can only be This transfer (c)As such, the Appellant's father rightly bought the land from Oliver. " In his oral submissions, Counsel customary land can be transferable Domasi sought by means of a sale: to expound that on his· argument "In transferring, be assumed We strongly friendship, by person believe what it means is that the use, occupation X instead that such transfer Y The conditions may be done as a result of person are not given. relationship, family and enjoyment for the transfer of the land will leasing, borrowing, or even selling to any Malawian. " considered I have carefully accept the assertion strange submissi the leading authorities t that the transfer ons and they go against hereon: See by Counsel Domasi and I am unable can be by means of a sale. These are very in the Land Act and the clear provisions Mervis Chirwa v. Faizal Karim and the submissions to Luka Chataika v. Fred Bugayo Kenyatta J. Nyirenda, Pwelenje, Hon. David Faiti v. Saulosi Kandindo, HC/Mzuzu District Registr y Civil Cause HC/PR Civil. Cause No. 1412 of 2005 No. 9 of 2009 (unreported), (unreported), Ht:/PR Civil Cause No. 3277 of 2003 (unreported) Jossianne le Clerq and Regional Commissioner No. 2829 of 2006 (unreported Jayshree Patel v. Khuze Kapeta and Kaka Holdings Ltd, and Nicco J. G. Kamanga v. for Lands, HC/PR Civil Cause ). In Mervis Chirwa v. Faizal was, was confronted capable of being sold: with the question of whether Karim and Pwelenie, supra, Chikopa, or not customary J, as he then land is legally of ownership in the land in issue it have sold the said land to the Plaintiff'? The could not have had at the material indeed the first Defendant. The Plaintiff time any title cannot in our judgment that she bought the simply had no land to sale. The In other words or rights sold the land. ..... being 'could to pass on to the Plaintiff the Defendant They had no title land. The Umangombas "The question answer is in the negative. being customary or right of ownership they could not have validly validly claim ownership same from the Umangombas. Plaintiff members land within a given area. It is like a licence land ... Customary to individual land belongs under a chief Those families village their heirs justification could not therefore in consultation at law. " 1 The Umangombas have bought any land from them. The law allows with their chief to pass on usage and occupancy only family of customary of the to the use and occupation who as a collective make up a to no to the contrary will have families can also pass on usage and occupancy or indeed any other person. Anything of the land in issue by contending considered the facts in the present case is that his father bought the garden in dispute I have critically Appellant's However, could have validly being had to the fact that there was unchallenged inherited no evidence passed in dispute following was laid before the lower court as to how Oliver regard that the Respondent father. the death of the Respondent's of the garden in dispute evidence of the from Oliver. on usage and occupancy case. The main thrust whatsoever the garden Having gone through the evidence adduced before the lower court, that the decision the weight wayside. The decision be faulted. Ground of Appeal No.4 has to fall by the it is my holding is not against of the lower court cannot of the evidence. In this regard, The claim was statute barred Luka Chataika v. Fred Bugayo Kenyatta J. Nyirenda, With due respect to Counsel undisputed evidence Respondent went to garden in dispute, in 2004 and ( c is misconceived. The father died in 2002, (b) the ng the Selemani Village to start cultivati is that (a) the Respondent's this ground of appeal gardens, including the e in 2011. dent commenced the cas ) the Respon Domasi, In the premises, I fail to understand been caught by section 6 of the Limitation dispossess the dispossession. barred. ion of land to do institute an action In any case, the Appellant how the claim by the Respondent could have Act which requires within twelve years from the date of did not plead that case was statute a party claim All in all, the Appellant's must similarly dismiss fail in this Court. I, accordingly, claim could not be sustained in the court below and it the appeal with costs. Pronounced Malawi. in Court this 3 th day of June 2017 at Blantyre in the Republic of Nyirenda enyatta JUDGE 9